Treatment of project employees

TO GO AROUND the rules on regularization of employees, some employers compel their employees to enter into project employment contracts.
Under existing regulations, an employment is not considered regular if it is for a specific project or undertaking whose completion has been pre-determined at the time of the employment.
This provision, however, has been exploited to avoid the grant of certain benefits to employees which they would otherwise be entitled to.
A recent decision of the Supreme Court on project employees has cut the ways by which this loophole can be abused to the detriment of hapless employees.
From 1996 to 2008, Jeanette Manalo, Vilma Barrios, Lourdes Fernandez and Leila Taiño were hired by TNS Philippines Inc. as field personnel for several projects.
TNS was engaged in providing marketing research and information, consultancy and other value-added services to local and international clients.
It employed field personnel on a project-to-project basis to gather consumer data about their clients’ products or services through personal interviews, telephone calls, and other similar modes.
The employees earlier mentioned were made to sign project-to-project employment contracts. Upon the termination of a project, TNS filed a termination report with the Department of Labor and Employment (DOLE).
Reassignment
In addition to field work, the employees were assigned office-based tasks that required them to be in the office from 9 a.m. to 6 p.m. or later. These tasks were, however, not covered by any contract nor were they reported to the DOLE.
In August 2008, TNS told them they would be replaced by new field interviewers and that they would be assigned instead to seasonal “ad hoc” projects.
This notice prompted them to file a complaint for regularization of employment with the National Labor Relations Commission (NLRC).
Shortly after that filing, TNS told them to stop reporting for work as they were being pulled out from their current assignments and that were no other projects that needed their services.
After receiving this order, the employees filed a complaint for illegal dismissal against TNS, which was consolidated with the earlier complaint for regularization.
The labor arbiter dismissed the complaint on the ground that they were project employees who knew the nature of their position as such at the outset and fully understood that their contracts would lapse upon completion of the projects.
And that even if they “were continuously rehired for several and different projects, the determining factor was whether, at the time of the hiring, the employment was fixed for a specific project or undertaking and its completion was predetermined.”
The arbiter said the employer-employee relationship was terminated upon completion of the project and that their employment was coterminous with the duration and accomplishment of the project.
Relationship
Upon the employees’ appeal, the NLRC set aside the dismissal and cited TNS’s failure to present proof of the employees’ project employment after Nov. 30, 2007 as basis for treating them as regular employees after that date.
TNS questioned the NLRC’s ruling before the Court of Appeals. This time, the court decided in favor of TNS.
Echoing the arbiter’s earlier findings, the court said “the mere fact that a project employee had worked on a specific project for more than one year did not necessarily change his status from project employee to regular or permanent employee.”
Unfazed by the loss, the employees sought relief from the Supreme Court, and their petition was docketed as “Jeannette V. Manalo vs TNS Philippines, Inc.,  G.R. No. 208567, Nov. 26, 2014.”
The tribunal, citing an earlier ruling, stated that a project employee who was continuously (as opposed to intermittently) rehired by the same employer for the same tasks, and “these tasks are vital, necessary and indispensable to the usual business or trade of the employer” should be considered a regular employee.
In the instant case, the employees’ successive re-engagement to perform the same kind of work showed the necessity and desirability of the work in the usual business of TNS as a market research facility.
Intermittent
Addressing TNS’s argument that the employees were hired intermittently, and not continuously, the justices pointed to certain provisions in the employment contracts that justify their claim of regularity of employment.
One of the provisions state that “the company shall have the option of renewing or extending the period of this agreement for such time as it may be necessary to complete the project or because we need further time to determine your competence on the job.”
For the tribunal, the underscored phrase would refer to a probationary employment and runs counter to the nature of a project employment.
Under this provision, TNS can extend the contract although it is supposed to be fixed when it deems it necessary to determine the employee’s qualification for the job.
In the same token, TNS can preterminate the contract not because the project has been completed ahead of time, but because of the employee’s failure to qualify for the job.
The provisions in question rendered the supposed project employment contracts highly doubtful.
Summing up, the tribunal stated that “in determining the true nature of an employment, the entirety of the contract, not merely its designation, or by which it was denominated, is controlling.”
For the reasons cited, the employees were declared to be regular employees of TNS. Considering that TNS failed to prove that they were dismissed for a just or authorized cause, their removal was ruled as illegal.
Accordingly, TNS was ordered, in lieu of reinstatement, to pay them backwages and separation pay.
It was a fitting reward for a six-year struggle for justice they rightly deserved.

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